| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
Freedom Day: Are We Any Clearer?
Government announcements over the past couple of weeks on the easing of Covid restrictions have caused considerable confusion. Let’s have a look at the latest guidance for employers and some possible ways forward.
What’s the New Advice?
The government has now updated its sector-specific Covid guides. References to making the workplace ‘Covid-secure’ have been dropped and the tone is softer. The phrase ‘stop the spread’ has been replaced with ‘reduce the risk’, you should make your business ‘safer’ rather than ‘safe’ and you ‘should’, rather than ‘must’, consider the advice.
Guidance on working from home, social distancing and reduced occupancy has been replaced with 6 priority actions:
- Carry out Covid risk assessments.
- Provide adequate ventilation.
- Clean more often.
- Turn away people with Covid symptoms.
- Enable people to check in using the Covid app.
- Communicate and train.
Despite the removal of restrictions, the government is recommending you:
- Implement a gradual return to the office over the summer. In areas of England worst affected by the Delta variant, the advice is for employees to continue working for home where possible.
- Consider encouraging the use of face masks in enclosed and crowded spaces or indoor areas where staff may come into contact with people they don’t usually meet.
- Reduce the number of people your staff come into contact with.
Also, the Health and Safety Executive has not yet updated its template Covid risk assessment, which still refers to social distancing as a key control measure.
In practice, then, you may well wish to retain many of your existing precautions until more people are double jabbed. However, you do now have a bit more flexibility over the control measures you put in place and you can start bringing your office workers back. You have a legal duty to consult your workforce on health and safety measures, so whatever your planned approach, do discuss it with staff.
What are Our Options for Bringing Office Staff Back?
Some possible strategies are to:
- Ask for volunteers.
- Ask staff to attend the office for a limited number of days each week to reduce numbers of contacts.
- Use cohorting (groups of employees who work on different schedules, such as 1 week in the office and 1 week from home).
- Only require or permit employees to return if they are double jabbed or have tested negative (but see below).
Can We Ask About Vaccination Status?
Asking about vaccination status creates data protection issues. If you only let people who are double jabbed attend work or you don’t mix vaccinated and unvaccinated staff, this will reveal to colleagues who has, and has not, had a jab. This will be a confidentiality breach.
In a sector like health or social care, you could argue that you have a ‘legitimate interest’ in asking for this information. If an employee refuses to tell you their vaccination status or refuses to get the vaccine, you could then consider dismissal for refusing to comply with a reasonable instruction.
In other sectors, it’s unlikely you could rely on ‘legitimate interest’ and you would need employees’ informed and freely given consent to use their sensitive medical information.
You could do this by writing to employees and asking them to sign a reply slip telling you their vaccination status and permitting you to use, share and store this information.
Consent won’t be freely given, though, if employees are at risk of dismissal for refusing to share their vaccination status or for not getting vaccinated. You should therefore make clear you won’t discipline employees in this situation (which could also lead to unfair dismissal claims). It would be less risky, however, to ask those who aren’t fully vaccinated or who won’t share their personal information to keep working from home or to provide proof of a negative test.
Other Tricky Vaccination Issues
You also need to think about employees who can’t have a jab for health reasons or who have an underlying condition that means the jab may not have been effective. It’s important to avoid disability discrimination against these groups.
It might also be age and disability discrimination if you force a younger person who hasn’t been offered a second jab to remain at home despite this causing them mental health issues. You should therefore take individual circumstances into account if you wish to ask about vaccination status.
From 16 August, the government is considering allowing people who have had both jabs to avoid self-isolation if they have come into contact with someone who tests positive. Employees who have been double jabbed are likely to consent willingly to share this information with you to avoid self-isolating (potentially on statutory sick pay). Those who withhold consent or aren’t double jabbed will have to follow the current rules and stay at home.
| HEALTH & SAFETY
Paul Smith, Co-Editor-in-Chief, Risk Assessment & Compliance; Editorial Board Member, Health & Safety Adviser |
Safe Work at Height: New Ladder Guide Gives the Latest Tips
There’s no escaping the fact that falls from height are the leading cause of fatal accidents in the UK workplace. Ladders are probably the most common item of equipment used for such work, and figures from the food and drink sector suggest that unsafe ladder use could account for up to 40% of work at height fatalities. Last week, at an online event attended by more than 3,000 people, the Ladder Association launched an updated safe-use guide along with a new Code of Practice. Here we set out the guide’s key messages for any organisation with ladder users.
The Ladder Association’s new LA455 ‘Safe Use of Ladders and Stepladders’ (view here) is endorsed by the Health and Safety Executive (HSE) and supersedes the HSE’s own INDG455 guide with the same title. It retains many of INDG455’s key messages, for example:
- Portable ladders are a sensible and practical option for low-risk, short duration (up to 30 minutes) tasks.
- However, ladders should only be used after a risk assessment has shown that using equipment offering a higher level of fall protection (e.g. access platforms, scaffold towers or conventional scaffolding) is not justified.
- Safety depends on key factors that include (a) choosing the correct ladder, (b) ensuring it is defect-free and (3) using it safely.
- Leaning ladders must be secured and stable: the ladder should be at an angle of 75 degrees (1 out, 4 up).
- Overreaching, and failing to maintain 3-points of contact (one hand and both feet, or one foot and both hands), greatly increase the fall risk.
- Users should be trained: here, the new guide expands on INDG455 by recommending your training should include:
- How to assess the risks of using a ladder for a particular task.
- When it is right to use a ladder (and when not).
- Which type of ladder to use and how to use it.
Safe Use of New Ladder Types
The revised guide recognises that new ladder designs are now readily available and in wide use, notably compact telescopic ladders and combination/multi-purpose (‘A frame’) ladders. It devotes specific sections to each type.
The new section on telescopics shows how to use such ladders safely, and underlines the importance of ensuring all sections are properly locked before stepping onto the ladder. It also highlights the dangers of pinching fingers, thumbs and hands when collapsing the ladder at the end of the job.
The new section on combination/multi-purpose ladders again underlines the need to use all locking mechanisms properly and to follow the manufacturer’s safe-use guidelines.
Buying New Ladders
Safety standards have been simplified: there is now just one (EN131) standard for portable steps and ladders. This does, though, cover ladders intended for DIY as well as professional use, so when choosing any ladder for workplace use, specify ‘EN131 Professional’: these are specifically designed for use at work and will be more durable than their ‘EN131 Domestic’ counterparts. Although EN131 supersedes the old BS2037 and BS1129 standards, there is no reason why ladders made to those standards cannot continue in use, so long as they remain in sound condition.
Action Points
This is a good opportunity to check your ladder safety arrangements: for example, do you have a ladder register to keep track of all ladders and ensure they are checked regularly? The frequency of these formal checks will depend on how heavily the ladder is used, but users should always carry out their own pre-use check before stepping onto any ladder. User training is also vital, as highlighted above.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Returning to the Office and Homeworking Equipment
Now that the `work from home if you can’ guidance has been lifted, many employees who have been working from home since the start of the pandemic are returning to the office. This may mean that they no longer need their homeworking equipment. If you allow your employees to keep their homeworking equipment for personal use, a tax charge may arise; however, this will depend on how the equipment was made available to them in the first place.
Scenario 1: Employer Provided Homeworking Equipment to the Employee
If the employer purchased the equipment and provided it to the employee to enable them to work from home, but retained ownership of the equipment, there was benefit in kind tax charge to worry about on the provision of the equipment, as long as private use was not significant and the equipment was provided primarily to enable the employee to perform the duties of their employment.
If the employee returns to the office or other workplace and simply returns the equipment to the employer on their return, once again, there are no tax issues to address.
Likewise, if the employee retains the equipment so that they can continue to work from home on a flexible basis, as long as the main reason for them keeping the equipment is to work from home, a tax charge will not arise.
However, if the employee no longer needs the equipment to work from home and the employer simply allows the employee to retain it for personal use (which may be the easiest option for the employer if they have no further use for the equipment), a tax charge may arise if ownership of the equipment is transferred to the employee. The amount charged to tax is the market value of the equipment on the date on which it is transferred to the employee, less any amount paid by the employee for the equipment. Consequently, if the employee buys the equipment for at least the current market value, no tax charge will arise.
If the employee is allowed to keep the equipment for personal use, but the employer retains ownership, a tax charge will arise based on 20% of the market value when first made available for the employee’s personal use, less anything that the employee pays for the use of the equipment.
Scenario 2: Employer Reimbursed Equipment
Confusingly, the rules are different if the employee initially purchased the equipment and the employer reimbursed the cost. This was the reality for many employees who were instructed to work from home at the start of the pandemic. In this case, it will generally be the employee rather than the employer who owns the equipment, despite the fact that the employer has ultimately met the cost.
Under a temporary exemption, no tax charge arose where the employer reimbursed the cost of equipment purchased by the employee to enable them to work from home. As long as there was no transfer of ownership to the employer as part of the reimbursement conditions, there will be no tax charge either if the employee keeps the equipment for personal use when they return to the workplace; as the employee already owns the equipment, there is nothing to tax.
Understand the Difference
It is important that employers understand the different tax treatments that can apply where the employee retains homeworking equipment, the cost of which has been ultimately met by the employer. It is necessary to check how the equipment was made available in the first place.